State and local prosecutors on Wednesday asked to meet with the San Bernardino County Board of Supervisors on Monday in an effort to convince the board to waive its attorney-client privilege and allow closer scrutiny of the talks leading to a $102 million settlement with developer Colonies Partners LP in 2006.

County officials have agreed to make the county’s top lawyer available for a meeting with prosecutors next week but it was not immediately clear Wednesday whether the board members themselves would take part.

Either way, Board of Supervisors Chairman Gary Ovitt and Supervisor Paul Biane announced they would not be participating in future closed-session decisions on whether to waive the attorney-client privilege to avoid the appearance of a conflict of interest.

Biane and Ovitt, along with former Board of Supervisors Chairman Bill Postmus, voted in favor of the settlement payment to the Rancho Cucamonga developer.

“Hearing all the facts and legal opinions, I have come to the decision that although it can be debated as to whether or not an actual legal conflict exists, what cannot be debated is the perception and detrimental effect my involvement could have on the county as a whole,” Ovitt said in a statement Wednesday.

Biane also issued a statement.

“I stand by my earlier statements that I did absolutely nothing wrong or unethical when I made the very difficult decision to settle the lawsuit…,” Biane said. “I am putting San Bernardino County and its taxpayers’ interests first in my voluntary decision not to take part in the closed session decision on whether to comply with the Attorney General’s attorney client privilege waiver request.

“I trust that my fellow Board members will consider this matter carefully and will make a decision that is best for the County of San Bernardino.”

In a letter to the Board of Supervisors dated March 17, Senior Assistant Attorney General Gary Schons asked the county if it would waive the attorney-client and mediation privilege in order to facilitate the joint criminal investigation.

On Tuesday, the county released a statement stating that Colonies refused to waive the mediation privilege.

“The Colonies put us on notice that they are not waiving, and that the county cannot do so without their permission,” County Counsel Ruth Stringer said Wednesday.

The county’s statement, which was not attributed to a specific county official, said county counsel would meet with the Attorney General and that the board will await an update, take everyting into account before making an informed decision as to whether to waive the attorney-client privilege.

“The Board of Supervisors has neither declined to waive the privilege, nor have we refused the request by the Attorney General’s Office,” Supervisor Neil Derry said in a statement. “We are still attempting to understand the totality of this request as it relates to ongoing litigation issues and whether or not it would further jeopardize taxpayer dollars.”

Derry said at least one half to a third of the information prosecutors are seeking was from the county’s mediation with Colonies during settlement negotiations.

“I made it pretty clear I am supportive of the request by the AG’s office, as long as we’re not further endangering a lot of taxpayers dollars, which we easily could be,” he said.

Jason Kinney, a spokesman for Colonies’ co-managing partner Jeff Burum, said in a statement that “with or without a waiver, the facts will establish that the settlement was overwhelmingly fair, saving the county as least $100,000,000 in damages and tens of millions in additional legal fees.”

“Colonies has been and continues to be willing to discuss a waiver,” said Kinney. “But we would like some assurances that it will be in the interest of establishing the truth and objectively assessing the fairness of the process, not for scoring political points or making reckless accusations.”

Prosecutors have voiced disappointment in the board’s decision on the mediation privilege but still want supervisors to waive the attorney-client privilege.

In a letter to the Board of Supervisors Wednesday, Schons said that, in an effort to expedite things, prosecutors are “setting aside their request for consideration of a waiver of the mediation privilege.”

Schons was also critical of Colonies for refusing to waive the mediation privilege.

“Despite its numerous public statements defending the $102 million settlement of the litigation by citing the mediator’s purported approval of that settlement, it is evident that Colonies has little interest in all of the facts coming to light,” Schons wrote.

Schons cited a section of the Evidence Code that limits the mediation privilege to “non-criminal” proceedings.

“Thus, application of this privilege to a criminal investigation and prosecution is questionable,” Schons said in his letter.

Though Ovitt and Biane are recusing themselves from decisions on waivers, the two supervisors stopped short of saying they would no longer participate in other decisions regarding the county’s pending litigation involving Colonies.

The county is suing Caltrans, San Bernardino Associated Governments, the county’s transportation planning agency, and the city of Upland for indemnity stemming from the Colonies litigation.

“I think it would be very politically prudent for them to be recusing themselves,” said Bob Stern, president of the Center for Governmental Studies. “They have an interest in this and I think they want to be invovled to protect their interests. Self interest trumps everything.”

Susan Mickey, a spokeswoman for the District Attorney’s Office, declined to comment on the recusal decisions.

“We think that should be left to the good judgement of the board and the advice by the county counsel,” she said.

Statement from Supervisor Paul Biane

SAN BERNARDINO – San Bernardino County Second District Supervisor Paul Biane released the following statement on Tuesday regarding his decision to voluntarily recuse himself from participating in the Board’s vote on whether to waive attorney client privilege as requested by the Attorney General.

“I stand by my earlier statements that I did absolutely nothing wrong or unethical when I made the very difficult decision to settle the lawsuit following Judge Warner’s tentative ruling indicating the County would likely not prevail in court.

“I am putting San Bernardino County and its taxpayers’ interests first in my voluntary decision not to take part in the closed session decision on whether to comply with the Attorney General’s attorney client privilege waiver request.

“I trust that my fellow Board members will consider this matter carefully and will make a decision that is best for the County of San Bernardino.”

Statement from Jason Kinney on behalf of Jeff Burum

“With or without a waiver, the facts will establish that the settlement was overwhelmingly fair, saving the County at least $100,000,000 in damages and tens of millions in additional legal fees. Colonies has been and continues to be willing to discuss a waiver. But we would like some assurances that it will be in the interest of establishing the truth and objectively assessing the fairness of the process, not for scoring political points or making reckless accusations.”

Joe Nelson is an award-winning investigative reporter who has worked for The Sun since November 1999. He started as a crime reporter and went on to cover a variety of beats including courts and the cities of Colton, Highland and Grand Terrace. He has covered San Bernardino County since 2009. Nelson is a graduate of California State University Fullerton. In 2014, he completed a fellowship at Loyola Law School's Journalist Law School program.

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